The People v. Gibbs

WRIT OF ERROR to the Circuit Court of Sangamon County; the
Hon. Clem Smith, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 17, 1952.

Six indictments were returned by the grand jury of Sangamon County against the defendant in error, William F. Gibbs, on December 13, 1950. All were ordered filed by the circuit court of that county on the same date and a capias was issued in each case. On January 15, 1951, motions to quash were filed in all cases on behalf of defendant in error and on May 3, 1951, on motion of the State's Attorney, these motions to quash were set for hearing on June 28, 1951. The motions to quash were argued on the date scheduled and taken under advisement by the court. On September 7, 1951, before the court had ruled on the motions, defendant in error filed a petition for change of venue from two of the judges of the seventh judicial circuit on the ground of prejudice, one of the judges being the judge who had the motions under advisement. The petition for a change of venue was allowed on September 26, 1951. On October 9, 1951, another of the judges of the same circuit set the motions to quash for argument on November 7. The motions were argued on November 14 and on December 12, before any ruling had been made, the defendant sought and obtained leave to file additional grounds in support of his motions to quash, and these additional grounds, five in number, were filed on the same date. On December 19, 1951, the court entered its orders quashing all indictments. This writ of error is brought by the People by virtue of section 17 of division XIII of the Criminal Code (Ill. Rev. Stat. 1951, chap. 38, par. 747,) to review the orders of the trial court. Since the same questions of law are presented in all cases, the causes have been consolidated by order of this court.

The indictments in all cases but one contained nine counts charging grand larceny, forgery and confidence game and their cognates. The sixth indictment contained four counts all charging forgery. Each indictment charges that the various offenses were committed by the defendant in error on a certain date with respect to a particular Auditor's warrant of the State of Illinois. The indictments differ from one another only as to the date of the alleged offenses and as to the particular warrant involved, each warrant being different in amount and as to name of payee. All counts in any one indictment are based on one particular warrant and the date of the alleged offense is the same in each count.

As to the five nine-count indictments, count 1 charges larceny of the warrant in question, count 2 charges larceny as bailee and count 3 larceny as bailee, particularizing in greater detail. Count 4 charges defendant in error with forging the name of the payee as an endorsement and count 5 charge the uttering of a forged instrument, i.e., an instrument with a forged endorsement. Count 6 is the same as count 4 except that the payee is alleged to be a fictitious person and count 7 charges the uttering of the warrant with the false endorsement of a fictitious payee. Counts 8 and 9 are the confidence game counts, the former charging the obtaining of the warrant in question by means and use of the confidence game, and the latter an attempt to do so. The sixth indictment contains only four counts, all charging forging and uttering, and being like counts 4, 5, 6, and 7 of the other indictments.

The original motions to quash contain twenty specifications of objection to each of the nine-count indictments and ten as to the four-count indictment. All items in the original motions to quash relate to matters appearing on the faces of the indictments. Such is not the case with the additions to the motions to quash. Each of these contains five specifications of objection and all relate to the legality of the grand jury which returned the indictments and thus raise questions dehors the indictments themselves. This involved the taking of certain testimony which appears in the record. The first of these allegations, incorporated in the motions to quash as item 21 in all cases, alleges that the grand jury was recalled improperly and not in pursuance of the provisions of section 3 of division XI of the Criminal Code. (Ill. Rev. Stat. 1949, chap. 38, par. 713.) The second contention (item 22) is that the grand jury was improperly called in the first place and no order of recall issued recalling it for the day the indictments were returned. Item 23 of the additional grounds alleges that no proper list of the grand jurors was filed with the clerk of the circuit court and also that no order reconvening the grand jury was entered. Item 24 alleges that the grand jury was not properly assembled on November 22, 1950, that is, that it was not a legal grand jury in the first instance. Item 25 again refers to the filing of a list of grand jurors and says no proper list was filed for the January, A.D. 1951, term.

It appears from the record that the trial court recognized items 21 and 22 of the additional grounds as a sole basis for quashing all of the indictments, i.e., the proposition that the grand jury was not properly recalled. This was the only reason given or discussed by the trial judge, who said: "When a Grand Jury is excused from further service by the Court, in my judgment the only way that Grand Jury can be recalled is by a proper order of the Court designating the time at which the Grand Jury is to reassemble. It appearing to the Court that in this particular series of indictments there was no order entered by the Court for the recall of this Grand Jury, it will be the order that each indictment pertaining to defendant Gibbs be quashed."

But the reason given by the court below for quashing the indictments is not seriously urged in this court by counsel for defendant in error as a basis for sustaining the order of the trial court. In his argument counsel for defendant in error states that items 21, 22 and 24 of his motions properly deal with those matters which might be considered as merely directory and he fails seriously to argue the contentions that the grand jury was improperly called in the first place or that it was improperly recalled. He does, however, argue that objection 23 contains sufficient reason for invalidating the indictments, that is, that no proper list of grand jurors was filed with the clerk of the circuit court. However, since the trial judge quashed the indictments for the reasons given and since those grounds are among those specified in the motions to quash, we shall deal here with all matters raised in the additional grounds filed in support of the motions.

The proof in the record relative to the grand jury shows that the regular November term of the circuit court of Sangamon County began on Monday, November 6, 1950. On October 30, 1950, during the September term, an order was entered by the court that the grand jury be summoned to appear before the court for service on November 20, 1950, at 9:30 o'clock A.M. and that the clerk include in the summons the names of the regular panel with five names from the supplemental panel. The record further shows that the grand jury for the November term was duly empanelled on November 20, 1950, a foreman was appointed and the jurors including the foreman were sworn and were charged touching their duties, retiring in charge of a sworn officer. On November 22, 1950, the grand jury was discharged subject to recall. On December 13, 1950, the grand jury reconvened and returned the true bills that are in question here. Thus it appears that the November term grand jury convened, not on the first day of the term which was the first Monday in November, but rather on November 20, 1950. It further appears that after the grand jury was discharged subject to recall on November 22, 1950, no order for its recall was entered of record. The record shows merely that it reconvened on December 13, 1950, one of the days of the November term. Section 9 of the Jurors Act (Ill. Rev. Stat. 1949, chap. 78, par. 9,) provides for the summoning and selection of the grand jury where required by law. The provisions of this section, so far as pertinent to the questions now before us, are as follows:

"If a grand jury is required by law or by the order of the judge for any court, the County Board in each of the counties in this State wherein such court is directed to be held, at least twenty (20) days before the time of appearance specified in the summons hereinafter mentioned shall select twenty-three (23) persons, regardless of sex, possessing the qualifications provided in Section 2, of this Act, and as near as may be a proportionate number from each town or precinct in their respective counties, to serve as grand jurors; * * * and cause their clerk within five days thereafter to certify the two panels properly identified as the regular panel and supplemental panel, respectively, to the clerk of the court for which they are selected, who shall issue and deliver to the sheriff of the county wherein the court is to be held, at least ten (10) days before the time of appearance hereinafter mentioned a summons commanding him to summon the twenty-three (23) persons so selected for the regular panel to appear before such court at or before the hour of eleven o'clock A.M. upon the first day of the term, or upon such day as the court or judge shall direct, to constitute a grand jury in courts having terms fixed by law for the term for which they are summoned, * * *. In those courts having terms fixed by law the court may in its discretion enter an order at least ten (10) days before the first day of the term for which the grand jury is selected dispensing with the grand jury on the first day of the term; and shall, on any date during the term for which the grand jury has been selected, enter an order causing a summons to be issued by the clerk of the court and issued to the sheriff of the county wherein the court is to be held at least ten (10) days before the time of appearance called for in said summons commanding him to summon the regular panel together with such number of the supplemental panel as the court may direct to appear and to constitute a grand jury as hereinabove set forth."

Examining the record in the light of the statute just quoted it is apparent that the grand jury did not appear on the first day of the term as the statute indicates it should. It is equally apparent that no order dispensing with the grand jury was entered at least ten days before the first day of the term. If the order of October 30 is to be considered as such, it was late by about three days. The statute further provides that if the grand jury has been dispensed with the court may enter an order on any day during the term for which the grand jury has been selected causing a summons to be issued at least ten days before the time of its appearance calling the grand jury into session, but the order in question was not issued on a day during the term,  it was entered seven days prior to the term. Thus we have a departure from the provisions of the statute so far as the summoning of the grand jury is concerned. The question now before us is whether this departure was so serious that its effect was to vitiate the indictments in question.

The fact that the order of October 30 did not formally recite that the appearance of the grand jury on the first day of the November term was being dispensed with we regard as unimportant since its intended effect in that regard could not be mistaken. We then have the questions: (1) What is the effect of the failure to enter the order at least ten days prior to the first day of the term if it was to operate to dispense with the grand jury's reporting on the first day of the term? (2) What was the effect of its not being entered on a day during the term if it was to operate to convene a grand jury that had been dispensed with?

This court has from time to time considered what effect departure from the statutory provisions as to the selection of grand juries has had on indictments returned by them. In People v. Lieber, 357 Ill. 423, we held that the drawing of the names of more than twenty-three persons and certifying them to the sheriff for service as grand jurors and subsequently drawing by lot the required number for jury service would not invalidate an indictment returned by a grand jury where the jurors were qualified to do so and where no prejudice, improper influence or fraud appeared. In that case after analyzing a number of our prior decisions we said: "These cases all indicate that by a greater weight of authority in this State the statutory provisions relating to the selection of grand jurors have been construed as directory  not mandatory. In order to remove any further doubt on the subject, we now hold that the provisions of the Jurors Act and the Jury Commissioners Act, insofar as they relate to the manner of selection of grand jurors, are directory and not mandatory, unless the substantial rights of the accused are injuriously affected by the methods pursued." Among the cases referred to in the Lieber case are our decisions in People v. Wallace, 303 Ill. 504, People v. Walsh, 322 Ill. 195, People v. Birger, 329 Ill. 352, and People v. Donaldson, 255 Ill. 19.

An examination of section 9 of the Jurors Act indicates that its primary purpose is to get the grand jury into court. Once the proper result has been achieved, it matters little when or how the grand jurors were summoned or ordered to appear unless, of course, it can be said that the substantial rights of a defendant have been seriously prejudiced by the manner of securing that result. Courts will construe the details of an act in conformity with its dominating general purpose, will read text in the light of context, and will interpret the text so far as the meaning of the words fairly permits so as to carry out in particular cases the generally expressed legislative policy. (Securities and Exchange Com. v. Joiner Leasing Corp. 320 U.S. 350.) The object of the legislature must be ascertained from a consideration of the entire act. (Blattner v. Dietz, 311 Ill. 445.) Statutory requirements intended for the guidance of officers and designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of the parties interested cannot be injuriously affected, are not usually regarded as mandatory unless followed by words of absolute prohibition. French v. Edwards, 80 U.S. 702.

The provisions of the act in question are primarily intended for the guidance of the officers of the court in securing the attendance of the grand jury. The grand jury has already been selected. It awaits only the call to serve. When by a single order its regular arrival date is dispensed with and another date set, it is difficult to see that any one ...

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